A blog post regarding the dangerous precedent of trademarking of common words.
|Tool. By definition, it is “something (such as an instrument or apparatus) used in performing an operation or necessary in the practice of a vocation or profession, for example, a scholar's books are his tools” as written in Merriam-Webster. Merriam-Webster also notes in their student’s dictionary that a tool is “a person used by another : dupe”.
Author. By definition, again from Merriam-Webster, this is “the writer of a literary work (such as a book): one that originates or creates something”.
Authors use tools every day to create the poetry, novellas, stories, novels, screenplays, or whatever creative piece they prefer. Tools like their imagination; their experiences; their heartbreaks; their time; and their passion. Authors also use simple tools like: pen or pencil; computers; paper; thoughts; ideas; and words.
Words. When Merriam-Webster is consulted on this word, it gets a bit more obtuse. Because the word “word” has a wide range of meanings and uses in English. However, by definition it is “a (1) : a speech sound or series of speech sounds that symbolizes and communicates a meaning usually without being divisible into smaller units capable of independent use (2) : the entire set of linguistic forms produced by combining a single base with various inflectional elements without change in the part of speech elements ; any segment of written or printed discourse ordinarily appearing between spaces or between a space and a punctuation mark”.
Words have been used for centuries to convey emotions, thoughts, commands, demands… well, you know, pretty much everything that has been spoken or written. Words are the one building block of an author’s trade that cannot be replaced. We need words. Plain and simple. We need words to convey the stories that itch and ache to be written and shared. As such, no common, everyday word can be claimed by one person alone.
But wait… didn’t Kleenex do that? And Jell-O? Pepsi, Coca-Cola, Tylenol, and Band-Aid… didn’t they claim a word for their own? No. The company who created the item in question gave it a name and then trademarked the NAME as a brand. The word Kleenex, for instance, is a BRAND name thing that people have begun using as an everyday word. Kleenex as a word didn’t exist until 1924 when Kimberley-Clark introduced a facial tissue to remove cold cream and called it “Kleenex”. Today, rather than say tissue or facial tissue, many people simply say Kleenex.
To put it simply, BRAND name words are names of specific things that became everyday common in use. A great deal for the makers of the brands as it’s basically free promotion. But words that were everyday common in use before any of us were born, that have been around for centuries cannot be a BRAND. For instance, you cannot say that “grass” is your brand and therefore if someone wants to use it, they must get permission first. Or words like green, nose, sky, walk, talk, pretty, cocky, or any of the more than 171K words in current use, and 47,156 obsolete words or their approximate 9500 derivatives.
But what makes a BRAND? A brand is a trademarked name for a specific item or person (think Walt Disney). Trademark is, according to the US Patten & Trademark Office (USPTO), “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others”.
That’s all nifty info to have you say. Why do I care and why are you sharing it you ask?
Well, a few weeks ago, it became known that a previously unknown woman who calls herself an author and an actress managed to obtain a trademark on a word… an everyday common word. This word just happened to be “cocky”, a word that was first used in 1768. Now, it’s at this point that things became sticky. This woman made a series of errors in judgement that have taken a situation and made it a production.
First – she assumed no one would care that she did it. She thought no one would fight her when she demanded that other authors change their titles and covers. She thought it would be “no big deal”.
Second – she chose to attempt to enforce her trademark through Amazon. She began impacting those authors who’d already published books with “cocky” in the title by having the books pulled from the sales pages. She also threatened legal action for trademark violation.
Third – she didn’t back down when confronted by the masses of the indie author community with the proof of her incorrect assumption. Nor did she back down when the Romance Writers of America (RWA) and the Author’s Guild began working to counter her at every turn. Nor did she back down when a retired Intellectual Property (IP) attorney filed a petition to revoke the trademark. Instead, she began acting like the trapped animal who must gnaw their leg off to save their life. She defended her actions with the explanation that her readers couldn’t tell the difference between her books and her competition’s. She claimed she was being bullied at every turn and that she was only the victim.
At no point in the fallout of her actions, did this woman acknowledge that she may have been wrong or that she might need to issue an apology. She simply went quiet until Mother’s Day when she released a new book with the “cocky” trademarked title.
Are alarm bells ringing in your mind yet? I will admit that I was suspicious of her motives by the time she started threatening legal action against authors and everyone else. The word “actress” kept flaring in my mind rather viciously. When I heard that a book had been released on Mother’s Day, my whole body practically vibrated with the single thought that this mayhem that one woman had created had been a publicity stunt.
Publicity Stunt. We’ve all seen them. Our good Merriam-Webster defines it as “something done just to get the attention of the public”. Well, previously unknown woman who calls herself an author and an actress was suddenly on the lips and fingertips of EVERYBODY. Blood pressures were off the charts. The furor of this woman’s audacity was astonishing.
And at this point, I wish I could say that the furor died down, unknown woman faded into infamy, and blood pressures dropped. But, alas, I cannot. Unknown woman kicked it up a notch just hours before the holiday weekend was to begin by filing a civil lawsuit against the retired IP lawyer, a publicist, and an author.
Are your alarm bells ringing now? Mine are pealing madly. Previously unknown woman has already stated her first love is acting and that she has an indie film that she wrote and will be starring in IN THE WORKS to begin filming over the summer. I sense that since Mother’s Day her pings in Google searches dropped dramatically and she simply cannot have that. She must bring as much attention to herself and her business to make a thing of her film.
However, I believe we have now reached the point in which her publicity stunt is going to backfire. Her unwavering aspersions toward her readers, her fellow authors, and the entirety of the writing community at large along with her steadfast bleating of innocence and victimization are growing threadbare. There are so many holes in her many variations of explanations and excuses that her true motives are becoming clearer. But in her bulldozer blunt and racing speed attack on specific authors, lawyers, publicists, and others, she has caused significant damage to many careers and livelihoods. In the launch of her lawsuit volley, the indie community has further galvanized against her and vowed to fight her – supporting those most profoundly affected in every way possible, including financially.
If this previously unknown woman continues on the path she’s chosen, she’ll find the battlefield is going to be a mine field of her own making. Karma will drop its full wrath upon the woman’s head and no one will give a damn if she loses everything. She will have destroyed any possible chance to redeem her writing career, her acting career, or her credibility in either community.
But I didn’t spew all this shite just to educate you about the latest, greatest scandals. I really wanted to bring to light the extremely dangerous path that attempting to trademark a common everyday word is. In the weeks since this trademark shit-storm began, new trademark applications have been filed. Trademarks for words like “forever”; “dare”; “current”; “outbreak”; “encounter”; and so, so many more. It is a horrifying thing to think that one day authors will be reduced to trading each other for word use. Words that are tools.
At the end of the day and at the bottom line, the simple truth is that words are tools. They are the tools of the trade that authors use to create. Each tool is vital and protecting the use of every tool is a battle that is just beginning and just beginning to spread into other creative mediums. I hope with every beat of my heart that this trend of trademarking everyday words is nipped before it can become a thorny thicket of a special hell we’ll all be hard pressed to survive.
Authors – and all creators – love to use the tools we have… but none of us like to be the tool.